Jenny Milena Garcia v. U.S. Atty. General, (11th Cir. 2007)
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IN THE UNITED STATES COURT OF APPEALS
F O R THE ELEVENTH CIRCUIT
FILED
U .S . COURT OF APPEALS
E L E V E N T H CIRCUIT
N o . 05-16212 February 9, 2007
T H O M A S K. KAHN
CLERK
B IA No. A95-906-140
JE N N Y MILENA GARCIA,
P e titio n e r ,
v ersu s
U .S . ATTORNEY GENERAL,
R e s p o n d e n t.
P etitio n for Review of a Decision of the
B o ard of Immigration Appeals
(F eb ru a ry 9, 2007)
B efo re EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.
P E R CURIAM:
Jen n y Milena Garcia ("Garcia") petitions for review of the Board of
Im m ig ratio n Appeals' ("BIA") adoption of the Immigration Judge's ("IJ") order of
r em o v a l and denial of Garcia's application for asylum and withholding of removal
u n d er the Immigration and Nationality Act ("INA") and the United Nations C o n v en tio n Against Torture and Other Cruel, Inhuman, or Degrading Treatment or P u n ish m en t ("CAT"). 8U.S.C. §§ 1158, 1231(b)(3), 8 C.F.R. § 208.16(c). We d en y the petition.
I. BACKGROUND G arcia, a thirty-two year old native and citizen of Colombia, was admitted to th e United States in October 2001 and authorized to remain until 15 April 2002. In A u g u st 2002, Garcia applied for asylum pursuant to INA § 208, 8U.S.C. § 1158, a n d withholding of removal pursuant to INA § 241(b)(3), 8U.S.C. §1231(b)(3), c la im in g that she would be persecuted by the National Liberation Army ("ELN") o n account of her political opinion or membership in a particular social group if sh e returned to Colombia. On 3 October 2002, the former Immigration and N atu ralizatio n Service 1 issued Garcia a Notice to Appear, charging her with rem o v ab ility under section 237(a)(1)(B) of the INA as an nonimmigrant who rem ain ed in the U.S. for a time longer than permitted. In a hearing before the IJ, 1 On 25 November 2002, President Bush signed the Homeland Security Act of 2002, Pub.L. No.
107-296, 116 Stat. 2125 (2002), which created a new Department of Homeland Security ("DHS"), abolished the INS, and transferred the INS's functions to the new department.
G arcia conceded removability and renewed her application for asylum and w ith h o ld in g of removal; she also claimed relief under the CAT.
Garcia submitted evidence that the ELN, a Marxist insurgent group o p eratin g in certain areas of Colombia, often raised revenue to support their cause b y demanding a "war tax" from wealthy people living in the area of Colombia w h e r e her family's cattle farmfor which she assumed responsibility in mid-2000-w a s located. The ELN is known to steal and destroy property, as well as to kidnap an d kill people, for failure to pay the war tax or a ransom demanded. Garcia in d ic ate d that her own uncle and a close friend and neighbor had been kidnapped b y the ELN.
The record shows that, after Garcia took over her family's cattle operation, th e ELN demanded that she pay them a large sum of money, which she refused to d o . She also attempted to organize neighboring ranchers to join her efforts in im p ro v in g regional security. At one point, she requested assistance from the G A U L A Organization, an anti-kidnapping task force set up by the Colombian p o lice and military. Garcia testified that, beginning in 2000, she began receiving p h o n e calls from ELN members threatening her and her family's lives for her refu sal to pay the war tax and her efforts to improve regional security by r eq u e stin g military assistance. On 27 August 2001, arsonists set fire to a barn h o u s in g cattle located near the family's home while Garcia was present with her u n cle. During the disturbance, she heard gunshots and people moving near the h o u s e . Shortly after the incident, ELN guerillas called Garcia, stating that the fire w as intended to show her what happened to people who refused to pay the war tax.
T h e day after the fire, Garcia left the ranch to stay with her parents and sister in Barranquillo, Colombia. She then traveled to Jamaica on vacation and later d ecid ed to continue to the U.S. After arriving in the U.S., she contacted her family a n d learned that the situation around the ranch had not improved. She also learned th a t a close friend and neighbor was captured by the ELN and released only when ran so m ed . She testified that she feared that the same fate awaited her back in C o lo m b ia, stating that conditions in Colombia remain "terrible." A lth o u g h the IJ found Garcia's testimony credible and accepted that she had a legitimate fear of returning to Colombia, he denied her claims for relief and o rd ered her removal. The IJ found that the ELN threatened Garcia because she refu sed to pay the war tax, not because of a protected ground. The IJ specifically co n clu d ed that Garcia failed to show that the "ELN attribut[ed] any type of p o litic al opinion to [her] by virtue of [her] failure to pay the taxes," and also stated th at "[t]he mere refusal to provide monies to the . . . guerillas does not necessarily m ean that [Garcia was] being singled out by them as a supporter of the g o v ern m en t." In addition, the IJ rejected Garcia's claim of persecution on account o f her membership in a particular social group, noting that the lack of evidence s h o w in g that her familywho has continued to operate the farmhas been th reaten ed since her departure "indicate[s] that the guerrillas are not interested in th em as a particular social group but were only interested earlier in . . . obtain[ing] m o n e y from individuals that they thought were able to pay." Finally, the IJ d eterm in ed that Garcia was ineligible for protection under the CAT because she failed to show that she was the victim of past torture by the Colombian government o r by persons acting with the consent or acquiescence of the Colombian g o v e r n m e n t. On appeal, the BIA adopted and affirmed the IJ's order without an o p in io n .
II. STANDARD OF REVIEW In cases of express adoption of the IJ's decision, we review the IJ's decision a s if it were the BIA's. Al Najjar v. Ashcroft,
A tt'y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (quoting Elias, 502 U.S. at 481 n .1 , 112 S.Ct. at 815 n.1). We review the IJ's legal conclusions de novo, but will d efer to his interpretation of the INA if it is reasonable. Brooks v. Ashcroft, 283 F .3 d 1268, 1272 (11th Cir. 2002).
III. DISCUSSION G arcia argues that the IJ erred in concluding that she failed to establish a n ex u s between her past persecution or well-founded fear of future persecution and h e r membership in a particular social group or imputed political opinion. She asserts that the IJ erroneously failed to recognize that she was threatened because sh e was a member of the educated, landowning class of cattle farmers regularly ta rg e te d by guerrillas in Colombia, which the Seventh Circuit has found to be a p ro tected group for purposes of asylum. See Orejuela v. Gonzales, 423 F.3d 666, 6 7 3 (7th Cir. 2005). She also contends that the record shows that the ELN may h av e construed her acts as a disapproval of their efforts and goals and that this e v id e n c e sufficiently establishes persecution because of an imputed political o p in io n . And, Garcia argues that the IJ abused his discretion by denying her relief u n d er the CAT. We cannot agree, and we address each of Garcia's claims in turn.
A . Asylum under INA § 208 S e ctio n 208 of the INA, 8U.S.C. § 1158, vests DHS and the Attorney G en eral with discretion to grant asylum to "refugees," or persons who are unable o r unwilling to return to their country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, or membership in a p articu lar social group, or political opinion." INA § 101(a)(42)(A), 8U.S.C. § 1 1 0 1 (a)(4 2 )(A ). An asylum applicant must demonstrateby credible and specific ev id en ce--eith er (1) past persecution on account of a statutorily listed factor, or (2) a well-founded fear that the statutorily listed factor will cause future persecution. 8 C .F .R . § 208.13(a), (b); Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2 0 0 1 ). An applicant may establish a "well-founded fear" of future persecution by d e m o n s tr atin g these things: (1) she fears persecution based on an enumerated g ro u n d ; (2) there is a reasonable possibility that she will suffer persecution if rem o v ed to her native country; (3) she is unable or unwilling to return to her native co u n try because of her fear; and (4) her fear of persecution is subjectively genuine a n d objectively reasonable. See 8 C.F.R. § 208.13(b)(2)(i); Al Najjar, 257 F.3d at 1 2 8 9 . In considering an asylum application, the IJ should consider whether the ap p lican t could avoid persecution by relocating to another area within her native co u n try. 8 C.F R. § 208.13(b)(3).
Substantial evidence supports the IJ's determination that Garcia was not p ersecu ted and does not fear future persecution "on account of" her membership in a particular social group. In reaching this conclusion, we find it unnecessary to d ecid e whether educated, landowning cattle ranchers in Colombiathe relevant s o c ia l group as defined by Garciais a protected group, although we note that at le as t two other circuits have said that prominent landowners may constitute a p ro tected class within Colombia. See Orejuela v. Gonzales, 423 F.3d 666, 672 (7th C ir . 2005) (granting asylum to Colombian family which fell "into a distinct social g ro u p : the educated, landowning class of cattle farmers targeted by FARC," an o th er communist guerrilla group operating in Colombia); Ramirez v. Att'y Gen., N o . 05-2640, 2006 WL 1911036, at *2 (3rd Cir. July 11, 2006) (unpublished) (n o tin g that targeting of asylum applicant by FARC "because of his status as a b u sin essm an and landowner . . . could constitute the type of `immutable ch ar ac teristic' that would make up a `particular social group' under the BIA's d efin itio n of that term"). Although these decisions are not binding on this Court, th ey are instructive and are not inconsistent with our conclusion. In both Orejuela an d Ramirez, the guerrillas specifically communicated that their threats and d em an d s were made on the aliens because they were educated and landowners.
See Orejuela, 423 F.3d at 672 (noting that one family member "was told by the F A R C guerillas that [the threats were] because his family belonged to a `privileged g ro u p ' and that he and his brothers had gone to schools and universities; . . . [and] b ecau se his father was `renowned' as a cattle rancher"); Ramirez, 2006 WL 1 9 1 1 0 3 6 , at *1 (referring to a letter from FARC demanding money from applicant th at stated, "We are aware that your properties and businesses are located in our areas of operations. Because of this, it is necessary to undertake some form of co llab o ratio n . . . .").
But, in this case, the specific evidence Garcia presented does not indicate th a t the ELN targeted heror will do so in the future--because she was an educated la n d o w n e r ; the reason given for the ELN's threats was her refusal to pay the war ta x . As noted by the IJ, the lack of evidence showing that her family has been h arm ed or threatened since she left Colombia supports this finding. Nothing in the r ec o r d compels the conclusion that the ELN targeted her for a reason other than her p e r ce iv e d ability to pay the tax. As noted by the Seventh Circuit, a group defined so lely by their wealth is insufficiently narrow to constitute a protected class for a sy lu m purposes. Orejuela, 423 F.3d at 672 (citing In re V-T-S, 21 I.&N. Dec.
7 9 2 , 799 (BIA 1997)). Thus, the IJ did not err by rejecting Garcia's asylum claim b ased on her membership in a particular social group.
S u b s ta n tia l evidence also supports the IJ's determination that Garcia failed to show that the ELN persecuted her or that she fears future persecution because of h er political opinion. To qualify for asylum based on the political opinion ground, an applicant must show " `persecution on account of the victim's political opinion, n o t the persecutors.' " Sanchez v. U.S. Att'y Gen., 392 F.3d 434, 437-38 (11th Cir. 2 0 0 4 ) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 816, 117 L .E d .2 d 38 (1992)). Although a political opinion may be mistakenly "imputed" to th e applicant by the persecutor, see Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (1 1 th Cir. 2001), there must be some evidence that politics, rather than other likely reaso n s, motivated the alien's resistance to the persecutor. Elias-Zacarias, 502 U .S . at 482, 112 S.Ct. at 815-16. Here, Garcia's testimony that she reported ELN activ ity to an anti-kidnapping group and attempted to improve regional security is co n sisten t with her imputed political claim, but such evidence does not compel this C o u rt to conclude that the IJ erred. G arcia introduced no specific evidence showing that her refusal to pay the w ar tax and other efforts against the ELN stemmed in part from a political opinion o r that the ELN ever attributed a political opinion to her based on her acts. As we h a v e previously determined, refusal to cooperate with or to support guerillas fin an cially is insufficient to show persecution on account of a political opinion.
Sanchez, 392 F.3d at 438; see also Elias-Zacarias, 502 U.S. at 482, 112 S.Ct. at 8 1 5 -1 6 (guerilla organization's efforts to recruit alien into its military forces did n o t constitute persecution on account of a political opinion, and resistence to recru itm en t did not show, in itself, political motive on the alien's part). The e v id e n c e suggests that the ELN will persecute Garcia because of her refusal to pay a war tax. This persecution does not compel a finding of persecution on account of a political opinion; we therefore affirm the IJ's denial of asylum.
B . Withholding of Removal under INA § 241 S e ctio n 241(b)(3)(A) of the INA, 8U.S.C. § 1231(b)(3)(A), entitles an alien to withholding of removal if she can show that her "life or freedom would be th r e ate n e d " on account of an enumerated ground. To meet this standard, an ap p lican t must show that it is "more likely than not" she will be persecuted or to rtu red upon return to her country. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1 2 3 2 (11th Cir. 2005). Because the standard for withholding of removal is more strin g en t than the "well-founded fear" standard for establishing asylum, failure to q u alify for asylum generally forecloses eligibility for withholding of removal. Al N ajjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001). Because Garcia failed to establish her eligibility for asylum, the IJ correctly denied her application f o r withholding of removal under INA § 241(b)(3).
C . Withholding of Removal under the CAT T o obtain withholding of removal under the CAT, an applicant must show th at it is "more likely than not" that she will be tortured in the country of removal.
8 C.F.R. § 208.16(c)(2). For purposes of CAT relief, "torture" refers to "any act b y which severe pain or suffering, whether physical or mental, is intentionally in flicted on a person . . . by or at the instigation of or with the consent or acq u iescen ce of a public official or other person acting in an official capacity." Id.
§ 208.18(a)(1). Acquiescence of a public official "requires that the public official, p rio r to the activity constituting torture, have awareness of such activity and th e r ea fte r breach his or her legal responsibility to intervene to prevent such activ ity." Reyes-Sanchez v. U.S. Att'y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (q u o tin g 8 C.F.R. § 208.18(a)(7)). Garcia did not claim potential torture on the p a r t of the Colombian government or its agents, nor did she provide evidence that th e Colombian government has or will breach its legal responsibility to intervene in or prevent the ELN's activities. Thus, the IJ correctly determined that her claim fo r withholding of removal under the CAT must fail.
IV . CONCLUSION W e are guided by Elias-Zacarias and Sanchez, the factual weakness of the reco rd , and the standard of review. Substantial evidence supports the IJ's finding th a t Garcia is ineligible for asylum because she failed to establish a nexus between h e r past persecution or well-founded fear of future persecution and her m e m b e r sh ip in a particular social group or a political opinion. The record su fficien tly supports the IJ's conclusion that the ELN targeted Garcia because she refu sed to pay a war tax, not because she belonged to a particular social group or b e c au s e of her political opinion, actual or imputed. Although Garcia provided s o m e support for her position, her evidence does not compel us to conclude the IJ e rr ed . In addition, Garcia failed to establish eligibility for withholding of removal p u rsu an t to the INA and the CAT. Accordingly, Garcia's petition for review of the rem o v al order is D E N IE D . B A R K E T T , Circuit Judge, dissenting: T h e only question before us in this case is whether the attacks and h a r as sm e n t Garcia suffered at the hands of the National Liberation Army ("ELN") w e re "on account of" a statutorily protected ground.1 There are five such protected g ro u n d s: race, religion, nationality, or membership in a particular social group, or p o litic al opinion. 8U.S.C. § 1101(a)(42)(A). Here, Garcia alleges that she was p e r se cu te d on account of her membership in a particular social group--the elite, la n d o w n in g cattle ranchers targeted by Marxist groups such as the ELN--and her p o litical opinion, which opposed the ELN's methods and goals.
I believe the majority erroneously characterizes the harrassment and attacks th at Garcia suffered as nothing more than attempted extortion by the ELN. This r ea d in g is belied by the record evidence, and ignores the political and social import o f the guerrillas' demands. Indeed, the majority's approach essentially transforms C o lo m b ia's political and social violence into nothing more than an extended crime w av e, despite the fact that the IJ himself characterized it as 40-year-long "civil w ar" between the government and guerrillas. The latter characterization accurately c ap tu r e s the reality of the situation in Colombia, because it acknowledges that C o lo m b ia n guerrilla forces such as the ELN seek not just profit, but political co n tro l. Individuals caught in the middle of the struggle, as Garcia was, often find th em selv es the victims of political violence, not just crime. Indeed, according to o n e former Colombian judge, Colombia's current conflict "has its roots in political v io len ce that has existed not far below the surface of Colombian society since the n a tio n 's founding in the 1820s." Luz E. Nagle, Colombian Asylum Seekers: What P ractitio n ers Should Know About the Colombian Crisis, 18 Geo. Immigr. L.J. 441, 4 4 3 -4 4 (2004) (emphasis added). The country's political volatility has always track ed the fault lines between the Conservative Party--which tends to represent lan d o w n ers, the urban elite, and rural patrician families--and the Liberal Party, w h ic h generally represents leftists, laborers, and much of the rural peasantry.2 Id. at 444.
F ro m this simmering cauldron, Colombia's two major guerrilla groups--the E L N and the Revolutionary Armed Forces of Colombia ("FARC")--emerged in th e 1960s as the radicalized leftist by-products of a ten-year de facto civil war b e tw e en liberals and conservatives known as La Violencia. José E. Arvelo, Note, In tern atio n al Law and Conflict Resolution in Colombia: Balancing Peace and Ju stice in the Paramilitary Demobilization Process, 37 Geo. J. Int'l L. 411, 416 (2 0 0 6 ). The FARC and ELN both claim to represent the rural poor against C o lo m b ia's wealthy classes and oppose American influence in Colombia, the p riv atizatio n of natural resources, and multinational corporations. In order to ad v an ce their political goals, they have struggled to seize power from--and in so m e areas effectively replace--the precarious national government. William D.
S h in g le to n , Understanding Colombia, 25 Fletcher F. World Aff. 255, 260 (2001).
T h e ELN was founded in 1963 by "Catholic radicals and left-wing in tellectu als hoping to emulate Fidel Castro's communist revolution in Cuba." C o u n sel on Foreign Relations, FARC, ELN, AUC (Colombia, Rebels) (Nov.
2 0 0 5 ), available at http://www.cfr.org/publication/9272/. It has been called C o lo m b ia 's "only guerrilla group with a bona fide Marxist pedigree." Nagle, C o lo m b ian Asylum Seekers, at 450. In keeping with its leftist origins, the group's "m a in issue has been traditionally the exploitation of the country's natural reso u rces, especially its petroleum reserves by state companies and foreign m u ltin atio n als." Arturo Carrillo-Suarez, Hors de Logique: Contemporary Issues in In tern atio n al Humanitarian Law as Applied to Internal Armed Conflict, 15 Am. U.
In t'l L. Rev. 1, 1 (1999). In recent years, however, the ELN has also made d em an d s for "more general political and economic reforms, in addition to the n a tio n a liz atio n of natural resources." Id. at 16 (internal citation omitted).
In order to achieve their political ends, the FARC and ELN have in c r ea sin g ly embraced a campaign of countrywide violence and crime. As the IJ n o ted , the "guerrillas operatives finance their operations" in Colombia's "civil w ar" through "not only drug trafficking but also through the extortion of funds fro m wealthy individuals in Colombia and through the payment of ransom for k id n a p e d victims." The guerrillas see these extortive "war taxes" (known as v acu n a) as both a source of income and a political test, and often attack those who refu se to pay them, as Garcia learned firsthand. As the Third Circuit recently reco g n ized , "[r]efusal or inability to pay these war taxes is viewed as an act of p o litical opposition as often results in reprisal." Amaya Arias v. U.S. Att'y Gen., 1 4 3 Fed. Appx. 464, 465 (3d Cir. Aug. 2, 2005) (considering claims of a C o lo m b ian asylum seeker from Barranquilla). The ELN backs its demands with v io len ce, particularly against landowners and the petroleum industries, both of w h ich represent the foreign-dominated capitalism the group opposes.
G iv en the ideological bent of the ELN, it is not enough to say, as the IJ did h ere, that the guerrillas who targeted Garcia and her family were "not interested in th em as a particular social group but were only interested to obtain money from in d iv id u als they thought were able to pay." To the contrary, Garcia and her family rep resen t the very "social group" to which the ELN has been implacably and v io len tly opposed for more than 40 years: the landowning elite. The majority n o tes that "a group defined solely by their wealth is unsufficiently narrow to c o n s titu te a protected class for asylum purposes." Op. at page 9-10 (internal citatio n s omitted). This may be true, but it is also irrelevant, because Garcia's so cial group was not defined "solely" by her wealth, but by the same facto rs-- in clu d in g "land ownership"--set out in the leading cases defining "p a r tic u la r social group" for the purposes of asylum. See, e.g., Matter of Acosta, 1 9 I. & N. Dec. 211, 233 (BIA 1985).
A co sta is the leading BIA case defining "persecution on account of m em b ersh ip in a particular social group." It holds the phrase to mean "persecution th at is directed toward an individual who is a member of a group of persons all of w h o m share a common, immutable characteristic" including "a shared past ex p erien ce such as former military leadership or land ownership."(emphasis a d d e d ) .3 Acosta, 19 I & N Dec. at 233. The Acosta definition of "social group" has b een adopted by several Courts of Appeals. See, e.g., Lukwago v. Ashcroft, 329 F .3 d 157, 171 (3d Cir. 2003); Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998).
A p p lyin g that definition to cases involving landowning Colombian cattle-ranchers, 3 The Second and Ninth Circuits have adopted definitions which are even broader. See Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991) (defining a "particular social group" as "individuals who possess some fundamental characteristic in common which serves to distinguish them in the eyes of the persecutor or in the eyes of the outside world in general"); Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (defining "particular social group" as one brought together either by voluntary association, including a former association, or by an innate characteristic so fundamental that its members either cannot or should not be required to change it). o u r sister circuits have found them to constitute a "social group" that, in the S ev en th Circuit's words, "is not defined merely by wealth ... but by their o w n ersh ip of land, their social position as cattle farmers, and their education." T ap iero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005) (granting asylu m ). The Third Circuit faced a similar issue in Ramirez v. Attorney General, 1 8 7 Fed. Appx. 228 (3d Cir. 2006). In that case, a Colombian businessman and lan d o w n er claimed to have been persecuted by the FARC based on his socioec o n o m ic class. As in Garcia's case, the IJ and BIA failed to reach Ramirez's s o c ia l group claim, finding instead that he was targeted for purely "economic" r ea so n s . Id. at *230. Noting the Seventh Circuit's opinion in Orijuela, the Third C ircu it remanded to the BIA to consider whether Ramirez's status as a b u sin essm an and landowner made him part of a "social group" targeted by the F A R C . Id. at *231; see also Ucelo-Gomez v. Gonzales, 448 F.3d 180, 187-88 (2d C ir. 2006) (remanding to the BIA for a determination whether "affluent G u atem alan s" constitute "a particular social group"). I would follow the wellco n sid ered analysis of our sister circuits here.
The majority distinguishes Orejuela and Ramirez on the grounds that "[i]n b o th Orejuela and Ramirez, the guerrillas specifically communicated that their th reats and demands were made on the aliens because they were educated and lan d o w n ers." The threats and demands the majority quotes from those cases, h o w ev er, are no more specific than those that Garcia received. See Orejuela, 423 F .3 d at 672 (noting that one family member "was told by the FARC guerillas that [th e threats were] because his family belonged to a `privileged group' and that he a n d his brothers had gone to schools and universities; . . . [and] because his father w as `renowned' as a cattle rancher"); Ramirez, 187 Fed. Appx. at 238 (referring to a letter from FARC demanding money from applicant that stated, "We are aware th at your properties and businesses are located in our areas of operations. Because o f this, it is necessary to undertake some form of collaboration . . . ."). Here, the E L N told Garcia in July and August 2001 that she would pay the war tax with eith er money or blood, and that the payment was the cost "for being exploiters of th e proletarian people of Colombia." Whether this threat evinced animus towards G a rc ia 's position in the landowning capitalist elite (her social group) or a "political o p in io n " imputed to that group is immaterial, since Garcia claimed asylum on both g ro u n d s.
It seems that the ELN targeted the Garcias in part because they were affluent en o u g h to pay the war tax. However, Garcia need not show that the persecution she s u f fe re d was "based solely on account of a protected ground" such as her social g ro u p or imputed political opinion. Garcia-Valderrama v. U.S. Att'y Gen, 130 Fed.
A p p x . 434, 436 (11th Cir. 2005) (reversing and remanding BIA determination that C o lo m b ia n petitioner, who had been persecuted by FARC, suffered that p ersecu tio n at least in part on account of his political opinion). If an asylum ap p lican t "can show that the persecution was, at least in part, motivated by a p r o te cte d ground, then the applicant can establish eligibility for asylum." Id. In C o lo m b ia , which is wracked by violent divisions based on class, and where M arx ist groups subscribe to a political ideology that is explicitly based on class, c attle -r an c h e r s and landowners face socially and politically motivated violence as w ell as financial extortion.
G a rc ia also argues that she is entitled to asylum because she was persecuted o n account of her political opinion. In denying Garcia's petition, the IJ relied on an e rr o n e o u s ly narrow reading of "political opinion." The majority repeats that error.
In INS v. Elias-Zacarias, the Supreme Court held that when an asylum applicant claim s to have been persecuted due to a political opinion, the focus must be on the "v ictim 's political opinion, not the persecutor's," and that resisting a guerrilla o rg an izatio n is not by itself proof of the resister's political opinion. 502 U.S. 478, 4 8 2 , 483 (1992); see also Sanchez v. U.S. Att'y Gen, 392 F.3d 434, 438-39 (11th C ir . 2004) (citing Elias-Zacarias, 502 U.S. at 482). The Court found that an a sy lu m - se ek e r must prove that he had a political opinion or that one was imputed to him and also a well-founded fear "that the guerrillas will persecute him b ecau se of that political opinion, rather than because of his refusal to fight with th em ." Id. at 483.
E lias-Z acarias does not, however, foreclose "political opinion" claims by p etitio n ers whose actions demonstrate (even if just in the minds of their p ersecu to rs) both a political opinion and a desire to protect themselves. Reading th e case otherwise would essentially require a petitioner to demonstrate that he or sh e was solely expressing a political opinion (which is a protected ground), without reg ard for personal safety (which is not). This is both illogical and contrary to our caselaw , which provides that asylum seekers need not show that the persecution th e y suffered was "based solely on account of a protected ground." GarciaV ald erram a, 130 Fed Appx. at 435. See also Borja v. INS, 175 F.3d 732, 735-36 (9 th Cir. 1999) (en banc); Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994) ("The p la in meaning of the phrase `persecution on account of the victim's political o p in io n ,' does not mean persecution solely on account of the victim's political o p in io n ." ) .
T h e petitioner in Elias-Zacarias failed to show that his actions were even p a r tia lly motivated by his political opinion. Indeed, he testified to just the opposite: h is sole reason for resisting the guerrillas was fear of retribution by the g o v ern m en t. Elias-Zacarias, 502 U.S. at 482. Nor was there any evidence that the g u errillas imputed a political opinion to him based on his refusal to cooperate. Id.
U n lik e Elias-Zacarias, however, Garcia argues that she was targeted on account of b o th her expressed and her imputed political opinion. She first argues that the ELN p ersecu ted her because she explicitly expressed her political opposition to the g r o u p by refusing to give in to its demands, advocating for an increased military p resen ce in the region, encouraging local cattle-ranchers to cooperate in the in terests of self-protection, and reporting the ELN's threats to an anti-kidnaping o r g a n iz atio n .4 The fact that Garcia simultaneously tried to protect herself and her f am ily does not mean that her actions were not also a manifestation of her political b eliefs. Indeed, asylum is designed to protect those whose safety is threatened on acco u n t of their political views. We undermine the purpose of those laws when we d en y asylum to those whose political opinions happen to be aligned with their p erso n al safety.
M o reo v er, as the majority correctly notes, "a political opinion may be m istak en ly `imputed' to the applicant by the persecutor." As we have recognized, "[ a]n imputed political opinion, whether correctly or incorrectly attributed, may co n stitu te a ground for a well-founded fear of political persecution within the m ean in g of the INA." Al Najjar, 257 F.3d at 1289 (quotation marks and citation o m itted ). The majority disregards the record evidence that the ELN imputed a p o litic al opinion to Garcia and persecuted her because of it. The record 4 The majority acknowledges that Garcia's testimony was "consistent with her imputed political claim" but concludes that it "does not compel this Court to conclude that the IJ erred." Since this evidence, even under the majority's reading, demonstrates that the persecution Garcia suffered was, "at least in part, motivated by a protectected ground," Garcia-Valderrama, 130 Fed. Appx. at 436, I would regard the IJ's misreading as an error of law warranting reversal. d e m o n s tr ate s that the ELN explicitly viewed opposition to the war tax as a political a ct, not simply a refusal to fund its activities. In the summer of 2001, just before G a rc ia fled Colombia, ELN agents told her that she would pay the tax with either m o n ey or blood, and that it was a payment for exploiting the proletarian people of C o lo m b ia. The guerrillas thus clearly characterized the war tax not simply as a m ean s to obtain money, but as a political act in line with their professed Marxist r ev o lu tio n a ry ideals. Indeed, as the Third Circuit recognized in a similar C o lo m b ia n asylum case,"[r]efusal or inability to pay these war taxes is viewed as an act of political opposition and often results in reprisal." Amaya Arias, 143 Fed.
A p p x . at 465 (emphasis added). Landowners and cattle ranchers may of course be sp ecially targeted on account of their wealth, but not solely because the ELN is m o tiv a te d by criminal greed. Rather, their occupations and wealth make them rep resen tativ es of a capitalist mindset a "political opinion" to which the ELN is av o w ed ly and violently opposed.
T h e IJ, without determining whether the guerrillas' actions in this case am o u n ted to persecution, found that any persecution Garcia suffered was not "on acco u n t of" a protected ground. By characterizing the attacks and threats as merely crim in al in the face of record evidence to the contrary, the majority, like the IJ, ab d icates the duty conduct the "case-by-case adjudication" required to determine w h e th e r Garcia has a "well-founded fear" of persecution. INS v. Cardoza-Fonseca, 4 8
1 The majority erroneously refers to "the IJ's determination that Garcia was not persecuted." The IJ made no such determination. Because it dismissed Garcia's petition by finding no nexus between the mistreatment she suffered and any protected ground, the IJ did not consider whether that mistreatment amounted to "persecution." It did, however, find Garcia to be a credible witness.
2 Sixty percent of Colombians live in poverty, while less than one percent of the population generally the large landowners affiliated with the Conservative Party owns the majority of the land. Luz E. Nagle, Colombia's Legal War Against Illegal Armed Groups, 15 Transnat'l L. & Contemp. Probs. 5, 10 (2005).
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- U.S. Court of Appeals for the Seventh Circuit - Jaidibe Tapiero de Orejuela, Juan Jose Orejuela Tapiero, Carlos Andres Orejuela, and Saul Orejuela, Petitioners, v. Alberto R. Gonzales, Attorney General of the United States, Respondent., 423 F.3d 666 (7th Cir. 2005)
- U.S. Court of Appeals for the Ninth Circuit - Geovanni Hernandez-Montiel, Petitioner, v. Immigration and Naturalization Service, Respondent., 225 F.3d 1084 (9th Cir. 2000)
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 208.13 - Establishing asylum eligibility.
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 208.16 - Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture.
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 208.18 - Implementation of the Convention Against Torture.
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